Citation Nr: 1330618 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-49 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for thyroid disease, claimed as thyroid cancer, to include as a result of exposure to ionizing radiation. 2. Entitlement to service connection for skin cancer to include as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active military service from April 1944 to May 1946 and from August 1947 to June 1948. This matter is before the Board of Veterans' Appeals (Board) following an August 2012 Order from the United States Court of Appeals for Veterans Claims (Court) vacating the Board's February 2012 decision. This matter was originally on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before a Decision Review Officer at the RO in October 2009. The Veteran also testified before the undersigned Veterans Law Judge at the RO in August 2011. The transcripts of the hearings are included in the claims file. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to service connection for skin and thyroid disabilities, which he claims are due to radiation exposure he received in Nagasaki, Japan in 1945 while on active duty. Initially and as pointed out in the August 2012 Joint Motion for Remand (JMR) that precipitated the August 2012 Court Order, the Veteran had a period of service with the United States Air Force from August 1947 to June 1948 that was not acknowledged or discussed by the RO or the Board previously. Significantly, the RO's request to the National Personnel Records Center (NPRC) for the Veteran's service treatment records and personnel records included only the dates of his initial period of service with the United States Navy. The service treatment records and personnel records included in the claims file at the time of the prior adjudications did not include any records from the Veteran's second period of service. As such, a remand is required to allow the RO the opportunity to request service treatment records and personnel records for the Veteran's second period of active service, from August 1947 to June 1948. In that regard, the Board acknowledges that the Veteran submitted an October 2012 letter from the National Archives that indicated that his records could not be located because they may have been destroyed in a fire in July 1973. As there is no indication in the letter what locations for the Veteran's records were searched or whether such searches included his second period of active service, the Board concludes that additional efforts should be made to obtain both the Veteran's personnel and service treatment records from his second period of service. As to the Veteran's skin claim, the August 2012 JMR criticized the failure of the February 2012 Board decision and other evaluations of record to make a determination as to the credibility of the Veteran's assertions that he was first treated for skin problems in 1978 and first diagnosed with skin cancer below the lower lip in 1984. Significantly, the JMR noted that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) did not consider the Veteran's reports of skin problems beginning in 1978 or diagnoses of skin cancer beginning in 1984 in the metrics for estimating the Veteran's in-service ionizing radiation dose estimate. In that regard, the Board notes that the Veteran's statements do not clearly evidence what skin problems he was having beginning in 1978 or the specific type or types of skin cancer that he had in 1984 and on any other occasion prior to 2003. In any case, a diagnosis of skin cancer prior to 2003 was not noted in the dose estimate obtained in this case. As the Veteran is competent to report a contemporaneous diagnosis of skin cancer, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and there is no evidence of record to contradict the Veteran's assertion of a diagnosis of skin cancer prior to 2003, the Board concludes that clarification as to the time period and location of the Veteran's initial diagnosis of skin cancer is necessary. The Board also notes that while the initial consideration of the claim included notation of only three diagnoses of skin cancer, in subsequent years the Veteran has been diagnosed with skin cancer on multiple occasions. In light of the foregoing, a new dose estimate is required in this case based on the evidence received and reconsideration of the claim by VA's Under Secretary for Benefits (or designee) as outlined in 38 C.F.R. § 3.311 (2013). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request a copy of the Veteran's service treatment records and service personnel records for his second period of active service, that is from August 1947 to June 1948 from all appropriate sources. If such records cannot be obtained in whole or in part, written notification must be provided to the Veteran and his representative and written documentation of the efforts made to obtain these records should be associated with the claims file. 2. Send the Veteran a letter requesting that he provide information detailing: (1) the date, cancer type (e.g. basal cell carcinoma or squamous cell carcinoma), and location on the body of all diagnoses of skin cancer from 1984 to 2003 and (2) the types of skin problems experienced between 1978 and 1984. 3. After the above evidence is obtained, to the extent possible, in accordance with 38 C.F.R. § 3.311(a)(2)(iii), the AOJ must forward the Veteran's records concerning his radiation exposure - including any service records, his statements and testimony regarding radiation exposure, and any other information obtained while the case is Remand status - to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) The resulting dose estimate must include consideration of the Veteran's reported skin problems beginning in 1978, initial diagnosis of skin cancer in 1984, and any other diagnoses of skin cancer between 1984 and 2003 noted by the Veteran. 4. If the above-requested development results in a positive dose estimate, the claim must be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c). Such review should consider, and discuss as necessary, the Veteran's reported onset of skin problems in 1978, his initial diagnosis of skin cancer below the lower lip in 1984, and additional diagnoses thereafter. In addition, the opinion should consider the Veteran's family history of cancer, his sun exposure while living in Florida that included his hobby of golfing, and any other relevant factors. 5. After the above is complete, readjudicate the Veteran's claims. If a complete grant of benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).